Why Republicans are treading lightly in Elena Kagan hearings

Republicans still haven't gotten over the Democratic filibuster of President Bush's associate solicitor general, who was nominated for a federal judgeship in 2001. Now, in the Elena Kagan hearings, they're trying to take the high road.

“The Supreme Court is a wondrous institution,” Ms. Kagan said in her opening statement. “But the time I spent in the other branches of government remind me that it must also be a modest one – properly deferential to the decisions of the American people and their elected representatives.”

It is this time spent in other branches of government – specifically, as the Obama administration solicitor general – that, under typical circumstances, might have become a focal point of these hearings. But Republicans are treading softly in asking for Kagan’s memos as solicitor general, guided by a deep sense of injustice over a failed judicial nomination far less well known – yet little less controversial – than the Bork nomination.

From 2001 to 2003, Democrats refused to confirm President Bush’s associate solicitor general, Miguel Estrada, for a seat on the US Court of Appeals for the District of Columbia Circuit. It was the first-ever filibuster for an appeals-court nominee, and it centered on Mr. Bush’s refusal to give over memos produced by Mr. Estrada in his work as Bush’s top lawyer. [Editor's note: the original version of the story assigned the wrong title to Mr. Estrada.]

He said that Republicans considered requesting comparable documents for Kagan, but with the qualification that they would not insist on the request if the Obama administration cited executive privilege.

“It would have exposed the hypocrisy of Democrats,” he said.

Thin paper trail

In Kagan’s case, in particular, those memos might have been particularly helpful to senators.

No nominee to the Supreme Court since the Eisenhower administration has had fewer than five years of experience practicing law. Kagan has had three.

That’s not necessarily a disqualifier. But the lack of a judicial paper trail puts more pressure on the confirmation hearings to tease out a nominee’s orientation toward the law – a case made most emphatically in Monday’s hearing by a Democrat, Sen. Herb Kohl of Wisconsin.

“We have less evidence about what sort of judge you will be than on any nominee in recent memory. Your judicial philosophy is almost invisible to us,” he said.

Yet support for Kagan has come from an unusual source: Estrada himself.

In a May 14 letter endorsing the Kagan nomination, Estrada, now in private law practice, wrote: “If such a person, who has demonstrated great intellect, high accomplishments and an upright life, is not easily confirmable, I fear we will have reached a point where no capable person will readily accept a nomination for judicial service."

Estrada had to endure 28 months and six failed votes before he was virtually forced to decline the nomination. But “the letter has not a lot to do with my personal experience but more to do with the process,” he says in a phone interview.

Not Estrada redux

Still, the Kagan nomination is unlikely to go the route of the Estrada nomination. As the first woman to serve as solicitor general and the first women dean of Harvard Law School, Kagan has drawn positive comment from lawmakers on both sides of the aisle.

“There will be 59 Democrats [voting for her] and you can count on at least a few Republicans,” says Sen. Orrin Hatch (R) of Utah, a member of the Senate Judiciary Committee. “Unless she stumbles badly and makes some terrible mistakes, the odds are she will be confirmed.”

It’s rare for the Senate to reject a Supreme Court nominee when the president’s party controls the Senate. “In order to take down a nominee, you have to do what Democrats did with Bork: the first 24 to 48 hours are critical,” says Jonathan Turley, a law professor at George Washington University. “Republicans haven’t done that.”